March 23, 2023

Volume XIII, Number 82


March 22, 2023

Subscribe to Latest Legal News and Analysis

March 21, 2023

Subscribe to Latest Legal News and Analysis

March 20, 2023

Subscribe to Latest Legal News and Analysis

Washington District Court Reversal on MTCA Liability for Smokestack Emissions

A court in the Eastern District of Washington recently reversed its prior decision concluding that the deposition of aerial emissions from a smokestack in Canada could support a claim for arranger liability under Washington’s cleanup statute, the Model Toxics Control Act (MTCA). The court previously held that under MTCA, “[t]he ordinary meaning of ‘disposal’ does not preclude [disposal by aerial emissions], and crucially, MTCA expressly contemplates cleanup sites created by aerial contamination,” despite a 2016 Ninth Circuit decision in the same matter that denied arranger liability under CERCLA based on aerial emissions for the same facility.

Teck Cominco Metals, Ltd. (Teck), in its motion for reconsideration, emphasized the constitutional and federalism issues raised by the federal district court’s prior decision. Teck argued that the decision could have given Washington State the power to regulate a smelter in Canada.[1] However, the court’s order did not address these issues, instead focusing on MTCA’s definition of arranger liability under Revised Code of Washington § 70A.305.040(1)(c). The court held that the State of Washington failed to plausibly allege that Teck was liable as an arranger. The court reasoned that even if Teck intended to direct air emissions to the Upper Columbia River, as the State alleged that it did, the State had not alleged sufficient facts to show that the “disposal” of wastes to the air actually occurred at the Upper Columbia. The court expressed concern that “the State’s argument creates a theory of arranger liability with no apparent limiting principle.”

Procedurally, this means that the court has now dismissed the State’s claim for natural resources damages under MTCA. Teck’s motion for summary judgment on the ripeness of the State’s natural resource damages claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is still pending. Depending on the resolution of that motion, discovery on the State’s remaining CERCLA claims is due to commence in mid-March, with a trial set for February of 2024.

The district court’s reversal continues a recent pattern of court decisions that more closely align MTCA and CERCLA, consistent with a 2018 Washington Supreme Court decision that sought to harmonize MTCA and CERCLA standards of liability.


[1] The 9th Circuit rejected Teck’s similar arguments about the extra-territorial application of CERCLA in a 2006 decision. Our Seattle colleague Loren Dunn prepared an amicus brief on that issue, the reasoning of which was largely adopted by the court.

© 2023 Beveridge & Diamond PC National Law Review, Volume XIII, Number 31

About this Author

David C. Weber Air & Climate Change Attorney Beveridge & Diamond Seattle, WA
Office Managing Principal

David C. Weber is the Managing Principal and co-founder of Beveridge & Diamond’s Seattle office. 

He also serves as the co-chair of the firm’s Air and Climate Change group. Dave focuses his practice on environmental litigation and compliance counseling, including air and water quality regulation, hazardous waste handling and remediation, and contaminated site cleanups under federal and state laws.

A cornerstone of Dave's practice is advising clients on national air quality and climate change issues. He represents businesses in connection with enforcement proceedings,...

Augustus E. Winkes Environmental Attorney Beveridge & Diamond Seattle, WA


Augustus E. Winkes focuses his practice on contaminated site cleanup and litigation under CERCLA and state Superfund statutes. He is the deputy for the firm’s CERCLA, Brownfields, and Subsurface Contamination practice group.

He also advises clients on regulatory compliance and defends enforcement actions under federal and state hazardous waste, water quality, air quality, and climate change laws, and he has experience in natural resource management matters.

Mr. Winkes also serves on the Stakeholder and Tribal Advisory Group tasked with providing...

Rachel K. Roberts Land Use Attorney Beveridge & Diamond Seattle, WA

Rachel Roberts helps clients resolve complex matters involving contaminated sites, land use, and water rights.

Rachel’s practice focuses on contaminated site remediation under CERCLA and state laws, as well as water rights disputes and federal land use issues. Rachel helps clients steer complex and long-running cases to a successful resolution. She also enjoys helping clients navigate challenging regulatory environments.

Prior to joining Beveridge & Diamond, Rachel served as a Trial Attorney for U.S. Department of Justice’s Natural Resources Section of the Environment and...